Citation Nr: 0327945
Decision Date: 10/17/03 Archive Date: 10/28/03
DOCKET NO. 02-11 415 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Roanoke, Virginia
THE ISSUE
Entitlement to an increased rating for the service-connected
post-traumatic stress disorder (PTSD), currently evaluated as
50 percent disabling.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart of the U.S.A.
ATTORNEY FOR THE BOARD
Patricia J. Welch, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1944 to November
1945.
The veteran was a POW from March 26, 1945 to May 9, 1945.
The case comes to the Board of Veterans' Appeals (Board) on
appeal from an October 2001 decision by the RO that increased
the rating for the service-connected PTSD from 10 to 50
percent, effective on April 26, 2001.
The Board notes that in July 2002 the veteran requested and
was scheduled for a hearing before a Veteran's Law Judge
sitting in Washington, DC; however, he was unable to appear,
and the February 2003 hearing was cancelled.
FINDING OF FACT
The service-connected PTSD is shown to be productive of a
level of disablement that more nearly approximates that of
total social and industrial impairment with demonstrated
inability to obtain and retain employment.
CONCLUSION OF LAW
The criteria for the assignment of a 100 percent rating for
the service-connected PTSD have been met. 38 U.S.C.A.
§§ 1155, 5107, 7104 (West 2002); 38 C.F.R. §§ 4.7, 4.130
including Diagnostic Code 9411 (2003).
REASONS AND BASES FOR FINDING AND CONCLUSION
A. Veterans Claims Assistance Act of 2000 (VCAA )
Initially, the Board notes that the VCAA, Pub. L. No. 106-
475, 114 Stat. 2096 (2000), was signed into law prior to the
veteran's appeal. The VCAA essentially enhances the VA's
obligation to notify him about his claim (i.e., what
information or evidence is required to grant his claim) and
to assist him to obtain evidence for his claim.
The regulations implementing the VCAA (codified at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002)) are now published at 66 Fed. Reg. 45,620,
45,630-32 (August 29, 2001) (codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326 (2003)). The VCAA and the
implementing regulations are therefore applicable to the
issue on appeal. See Karnas v. Derwinski, 1 Vet. App. 308,
312-13 (1991).
The VCAA and the implementing regulations, in part, provide
that VA will assist a claimant in obtaining evidence
necessary to substantiate a claim, but is not required to
provide assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim.
The VCAA and its implementing regulations also require VA to
notify the claimant and the claimant's representative, if
any, of any information, and any medical or lay evidence, not
previously provided to the Secretary that is necessary to
substantiate the claim.
As part of the notice, VA is specifically to inform the
claimant and the claimant's representative of which portion
of the evidence is to be provided by the claimant and which
part VA will attempt to obtain on claimant's behalf.
The claims file shows that, through its discussion in the
Rating Decision (in October 2001), Statement of the Case (in
May 2002) and in a June 2001 letter to the veteran, the RO
notified him of the evidence needed to substantiate his
claim.
The RO has also made reasonable efforts to assist the veteran
in obtaining evidence for his claims. The RO sought and
obtained a medical evaluation conducted in August 2001.
Additionally, the RO provided the veteran with an opportunity
for a hearing, but the veteran cancelled a scheduled Board
hearing in February 2003.
Upon review of the record on appeal the Board finds that the
RO adequately apprised the veteran of the redefined
obligations of the VA as contained in the VCAA.
Nevertheless, the Board notes that the aforementioned June
2001 letter to the veteran from the RO advising him of the
provisions of the VCAA did not afford him the requisite time
and opportunity to respond.
The letter instructed the veteran to send additional evidence
or information within 60 days, but the Court in Paralyzed
Veterans of America v. Secretary of Veterans Affairs, No. 02-
7007, -7008, -7009, -7010 (Fed. Cir. Sept 22, 2003) found
that the 30-day period provided in 38 C.F.R. § 3.159(b)(1) to
respond to a VCCA duty to notify is misleading and
detrimental to claimants whose claims are prematurely denied
short of the statutory one-year period provided for response.
The Court thus invalidated the 30-day response period
contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38
U.S.C.§ 5103(b)(1).
However, in light of the favorable action taken hereinbelow,
the Board finds that the identified deficiency is harmless.
B. Legal Analysis
Disability evaluations are determined by the application of a
schedule of ratings, which is based on average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
When evaluating a mental disorder, the rating agency shall
consider the frequency, severity, and duration of psychiatric
symptoms, the length of remissions, and the veteran's
capacity for adjustment during periods of remission. The
rating agency shall assign an evaluation based on all the
evidence of record that bears on occupational and social
impairment rather than solely on the examiner's assessment of
the level of disability at the moment of the examination. 38
C.F.R. §§ 4.126, 4.130 (2003).
Further, when evaluating the level of disability from a
mental disorder, the rating agency shall consider the extent
of social impairment, but shall not assign an evaluation
based solely on the basis of social impairment. The focus of
the rating process is on industrial impairment from the
service-connected psychiatric disorder, and social impairment
is significant only insofar as it affects earning capacity.
38 C.F.R. §§ 4.126, 4.130 (2003).
The veteran's service-connected PTSD is evaluated under 38
C.F.R. § 4.130, Diagnostic Code 9411. Ratings are assigned
according to the manifestation of particular symptoms.
However, the use of the term "such as" in 38 C.F.R. § 4.130
demonstrates that the symptoms after that phrase are not
intended to constitute an exhaustive list, but rather are to
serve as examples of the type and degree of the symptoms, or
their effects, that would justify a particular rating.
Mauerhan v. Principi, 16 Vet. App. 436 (2002).
Accordingly, the evidence considered in determining the level
of impairment under § 4.130 is not restricted to the symptoms
provided in the Diagnostic Code.
Instead, VA must consider all symptoms of a claimant's
condition that affect the level of occupational and social
impairment, including, if applicable, those identified in the
DSM-IV (American Psychiatric Association: Diagnostic and
Statistical Manual of Mental Disorders (4th ed. 1994)). Id.
Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 50 percent
disability rating requires: Occupational and social
impairment with reduced reliability and productivity due to
such symptoms as: flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once a week; difficulty in understanding complex
commands; impairment of short- and long-term memory (e.g.,
retention of only highly learned material, forgetting to
complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships.
A 70 percent rating requires: Occupational and social
impairment, with deficiencies in most areas, such as work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as: suicidal ideation; obsessional rituals
which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); inability to establish and maintain effective
relationships.
A 100 percent rating requires: Total occupational and social
impairment, due to such symptoms as: gross impairment in
thought processes or communication; persistent delusions or
hallucinations; grossly inappropriate behavior; persistent
danger of hurting self or others; intermittent inability to
perform activities of daily living (including maintenance of
minimal personal hygiene); disorientation to time or place;
memory loss for names of close relatives, own occupation, or
own name.
A careful review of the records shows that the veteran's
service-connected PTSD is currently rated 50 percent
disabling. He contends that his condition is more disabling
than is reflected by the current rating.
A VA examination in February 1999 shows a diagnosis of PTSD
and a global assessment functioning score (GAF) of 55 to 60.
The examiner noted that the veteran was experiencing
flashbacks, nighttime phobic behavior, "crazy dreams,"
avoiding conversations dealing with his wartime experiences,
sleeping apart from his wife due to restlessness, and
episodes of being quick-tempered.
In April 2001, the veteran was seen at VA for the purpose of
a diagnostic evaluation. He was diagnosed with chronic and
severe PTSD and given a GAF score of 40. His evaluation was
based on his persistent re-experience of traumatic wartime
experiences manifested by recurrent and intrusive
recollections of events including images, thoughts and
perceptions; recurrent and distressing dreams of wartime
events that interrupted his sleep on a regular basis; and
intense psychological distress at external and internal cues
that symbolized or resembled wartime traumatic events he
experienced.
The examiner further noted that the veteran had a markedly
diminished interest in significant life activities; was
unable to sustain one career (he worked at many different
jobs in the past to support his family, and was currently
unemployed); felt detached and estranged from others (with
the exception of his family); was unable to relax or sleep
fitfully; avoided activities, places and people that aroused
recollections of wartime traumatic events, including watching
news coverage of current wars or war movies; had a restricted
range of affect and was not able to feel happy or joyful on
most occasions; experienced frequent irritability and
outbursts of anger; had difficulty concentrating; was
hypervigilant when out in public; and had an exaggerated
startle response.
On VA examination in August 2001, the veteran was diagnosed
with chronic and severe PTSD and given a GAF score of 40.
The VA examiner at that time noted similar findings and
concluded that, though the veteran's insight and judgment
were intact and he was able to handle his funds and finances
independently, his PTSD was both chronic and severe.
The VA examiner also noted that the veteran's PTSD symptoms
had caused clinically significant distress and impairment in
his social functioning.
In a February 2003 VA report, a clinical psychologist
diagnosed him with chronic and severe PTSD and recurrent
major depression secondary to PTSD and assigned a GAF score
of 40. She noted that she had been treating the veteran
since April 2001 and that, during the entire course of
treatment, he has suffered from severe PTSD.
In a June 2003 letter, the licensed clinical psychologist who
has been treating the veteran since 2001, noted the veteran's
inability to sustain employment for the past 15 years and
determined that he would continue to be unemployable at any
time in the future due to PTSD.
Further, she opined that the veteran's PTSD was chronic,
severe, total and permanent. She also stated that the
veteran's experiences as a POW and in combat during World War
II had had a "profound and devastating impact on every
aspect of the veteran's life."
Based on the severity of symptoms experienced by the veteran
and the GAF score, the Board finds that, though the veteran
does not exhibit the specific symptoms as described in the
rating criteria above for 100 percent, the symptoms he does
exhibit are analogous in severity, effect on the veteran's
life and ability to function as those listed in the rating
schedule. See Mauerhan v. Principi, 16 Vet. App. 436 (2002)
The veteran's current symptoms and manifestations of PTSD
amount to total occupational and social impairment consistent
with the rating schedule and within the meaning of Mauerhan
v. Principi, 16 Vet. App. 436 (2002). Further, this finding
is fully supported by and consistent with the medical
evidence in the record.
Accordingly, based upon consideration of all the evidence of
record, the Board concludes that the service-connected PTSD
warrants the assignment of a 100 percent evaluation.
ORDER
An increased rating to 100 percent for the service-connected
PTSD is granted, subject to the regulations controlling
disbursement of VA monetary funds.
____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge
Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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